Justice Stevens leaves mark on Internet law

Retiring Supreme Court justice wrote 1992 opinion that accelerated growth of e-commerce and 1997 opinion striking down an Internet censorship law.

U.S. Supreme Court Justice John Paul Stevens, who announced his retirement on Friday, is arguably the most liberal member of the court. What's less open to debate is that a pair of his opinions written over a decade ago outlined the legal environment that gave rise to today's Internet.

Supreme Court Justice John Paul Stevens U.S. Supreme Court

Amazon.com, Newegg.com, Overstock.com, and other major Internet retailers can trace much of their growth in the last decade to Stevens' 1992 opinion that said, unambiguously, that they cannot be required to collect sales taxes on out-of-state sales. That gave them a competitive advantage over traditional rivals like Borders and Best Buy that did charge sales taxes--while irking state tax collectors immeasurably.

In Quill v. North Dakota, Stevens wrote that such "vendors are free from state-imposed duties to collect sales and use taxes." He was talking about a catalog retailer named Quill Corporation that sold about $200 million of office supplies a year, but the decision swept in future e-commerce sales as well.

Stevens' opinion on behalf of a unanimous court did stress that the U.S. Congress is "free to decide whether, when, and to what extent the states may burden interstate mail-order concerns" by requiring sellers to collect taxes. That presaged a political battle on Capitol Hill, pitting governors against Internet firms, that has lasted at least nine years, with no resolution so far, and shows no sign of abating anytime soon.

In a letter to President Obama on Friday, Stevens said his retirement would be effective when the next term of the court begins this fall, in order to give enough time "to have my successor appointed and confirmed well in advance of the commencement of the court's next term."

Sen. Arlen Specter, the Pennsylvania Democrat, told Fox News on Sunday that if Stevens retires this year, "I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there's a much better chance we could come to a consensus." Because the court's majority favors executive power, "I think we need the kind of balance that Justice Stevens has provided to offset the majority."

The other Stevens opinion to have a far-reaching impact came in 1997, after Congress enacted a law called the Communications Decency Act, which made it a federal crime to post anything "indecent" on a public Web site where a minor might be able to read it.

"The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."
--Supreme Court Justice John Paul Stevens

If upheld, the CDA would have levied broadcast-style regulations on the Internet, making it a felony for even a news organization to post certain four-letter expletives of the sort that landed the late comedian George Carlin in trouble with the Federal Communications Commission. The Internet would have been left heavily censored, while DVDs, magazines, newspapers, and satellite radio, and TV were not.

And online porn? That would have been completely verboten--unless every single salacious image or video stayed behind a pay wall requiring credit card verification for proof of age. (If the CDA had remained in effect, the Internet porn industry may have moved offshore instead of being headquartered in California's San Fernando Valley.)

"The record demonstrates that the growth of the Internet has been and continues to be phenomenal," Stevens wrote for the majority. "As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

In a 2002 case dealing with Congress' second attempt to restrict sexually explicit material, Stevens was more willing than his colleagues to find problems with the law.

Stevens said he was happy to ban certain kinds of "hard-core pornography" and perhaps restrict teaser images on the Web "that serve no function except to invite viewers to examine hardcore materials." But, he wrote in a dissent, the federal law unreasonably sweeps in "a wide range of prurient appeals in advertisements, online magazines, Web-based bulletin boards and chat rooms, stock photo galleries, Web diaries, and a variety of illustrations encompassing a vast number of messages."

Stevens' record on high-tech issues didn't always jibe with, say, the ACLU's position. In a 2001 dissent, he said police could constitutionally use thermal imagers to peek inside Americans' homes without obtaining a warrant first. (Justice Antonin Scalia's majority opinion declared such a practice to be unconstitutional.)

 

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